STATE OF NEW JERSEY v. MALIK R. SMITH

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.


                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5001-14T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

MALIK R. SMITH,

     Defendant-Appellant.
__________________________


              Submitted October 11, 2017 – Decided November 16, 2017

              Before Judges Fuentes and Koblitz.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              03-04-0824.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (David A. Gies, Designated
              Counsel, on the brief).

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (John J. Santoliquido,
              Assistant Prosecutor, on the brief).


PER CURIAM

        Defendant appeals from a May 21, 2015 order of the court

denying his application for post-conviction relief (PCR) without
an evidentiary hearing.        We affirm substantially for the reasons

set forth by Judge Mark H. Sandson in his detailed written opinion.

     A jury convicted defendant of a 2003 double-murder that

occurred when defendant was in the process of committing an armed

robbery in a bar.      He shot and killed the bartender, who in turn

shot and killed another robber.           The murder weapon was found

disassembled      in   defendant's    girlfriend's      residence.           The

girlfriend      testified   against   defendant   as    part   of    her   plea

agreement.       Defendant was sentenced to sixty-six and one-half

years in prison, fifty-one of the years to be served without

parole.     We affirmed.    State v. Smith, No. A-1539-06, (App. Div.

Jan. 9, 2009).      Our Supreme Court denied defendant's petition for

certification, 
205 N.J. 520 (2011).        We granted the appeal of his

timely    PCR    application    because    "his   PCR     counsel      ignored

defendant's arguments contained in his pro se PCR brief" and did

not provide the PCR judge with the complete trial transcript.

State v. Smith, No. A-4371-11 (App. Div. June 19, 2014).                       We

remanded to the trial court, which denied relief                    after oral

argument.

     Defendant now appeals, raising the following issues:

            POINT I: THE PCR COURT ERRED WHERE IT FOUND
            THE DEFENDANT DID NOT ESTABLISH A PRIMA FACIE
            CASE THAT HE WAS DENIED A FAIR TRIAL DUE TO
            THE FAILURE OF TWO JURORS TO DISCLOSE DURING
            VOIR DIRE THEIR PRE-TRIAL KNOWLEDGE OF THE


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            DEFENDANT AND THE CRIME, THEREBY REQUIRING AN
            EVIDENTIARY HEARING.

            POINT II: THE PCR COURT ERRED WHERE, WHEN
            DECIDING THAT THE TRIAL COURT'S EX PARTE POST-
            CONVICTION COMMUNICATION WITH THE JURY WAS
            PROCEDURALLY BARRED, IT DID NOT CONSIDER
            WHETHER A FUNDAMENTAL INJUSTICE RESULTED FROM
            THE FAILURE OF THE TWO JURORS TO DISCLOSE
            DURING VOIR DIRE THEIR PRETRIAL KNOWLEDGE OF
            THE DEFENDANT AND THE CRIME.

            POINT III: THE DEFENDANT INCORPORATES HEREIN
            ALL OF HIS REMAINING ARGUMENTS FOR POST-
            CONVICTION RELIEF.

     New Jersey courts follow the rule formulated by the United

States Supreme Court in Strickland v. Washington, 
466 U.S. 668,

687, 
104 S. Ct. 2052, 2064, 
80 L. Ed. 2d 674, 693            (1984).      To

show ineffective assistance a defendant must identify acts or

omissions showing unreasonable professional judgment, and then

must show that these errors had a prejudicial effect on the

conviction.    State v. Fritz, 
105 N.J. 42, 58 (1987).           The same

standards   are   applied   to   ineffective   assistance   of   appellate

counsel claims.    State v. Harris, 
181 N.J. 391, 518 (2004).

     In reviewing claims of ineffective assistance of counsel,

courts apply a strong presumption that defense counsel "rendered

adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment."       Strickland, supra,


466 U.S.  at 690, 
104 S. Ct.  at 2066, 
80 L. Ed. 2d   at 695.

"[C]omplaints 'merely of matters of trial strategy' will not serve


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to ground a constitutional claim of inadequacy . . . ."                    Fritz,

supra, 
105 N.J. at 54 (quoting State v. Williams, 
39 N.J. 471,

489, cert. denied, 
374 U.S. 855, 
83 S. Ct. 1924, 
10 L. Ed. 2d 1075

(1963), overruled in part on other grounds by, State v. Czachor,


82 N.J. 392, 402 (1980)).         "The quality of counsel's performance

cannot be fairly assessed by focusing on a handful of issues while

ignoring the totality of counsel's performance in the context of

the State's evidence of defendant's guilt."                State v. Castagna,


187 N.J.   293,    314    (2006).     "As    a    general   rule,   strategic

miscalculations or trial mistakes are insufficient to warrant

reversal 'except in those rare instances where they are of such

magnitude as to thwart the fundamental guarantee of [a] fair

trial.'"      Id. at 314-15 (quoting State v. Buonadonna, 
122 N.J. 22,

42    (1991)).       "[A]n   otherwise       valid   conviction   will   not    be

overturned merely because the defendant is dissatisfied with his

or her counsel's exercise of judgment during the trial."                    State

v. Allegro, 
193 N.J. 352, 367 (2008) (quoting Castagna, supra, 
187 N.J. at 314).

       Both PCR counsel, who submitted a brief, and defendant, via

a pro se brief and an undated letter to the PCR court, set forth

a wide variety of claims of ineffective assistance of trial and

appellate counsel, as well as various alleged errors committed by

the trial court.       Defendant claimed he was given constitutionally


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ineffective assistance of trial counsel because his lawyer failed

to: 1) communicate the State's plea offer; 2) present key witnesses

on behalf of defendant or adequately cross-examine the State's

witnesses; 3) object to the absence of a Bible when the witnesses

testified; and 4) request a mistrial after the first day of

deliberations when the jury advised that it was "deadlocked."

      Defendant claimed his appellate attorney was ineffective by

failing to raise the following appellate issues: 1) the trial

court allowed the State, over objection, to mischaracterize the

evidence and introduce personal expression or beliefs; 2) the

trial court should have charged the jury on the lesser included

offense of attempted robbery; 3) the trial court should have

permitted into evidence the entire transcript of the 911 call; 4)

the trial court should have dismissed the indictment because it

was based on perjured testimony; and 5) the trial court should

have dismissed the conspiracy count because the State did not

present evidence of an overt act.

      Defendant repeated his claims of trial error in his undated

letter to the PCR court.      PCR counsel argued to the PCR court that

the trial judge erred in: 1) having improper ex parte contact with

the jury post-verdict; 2) denying defendant a fair trial based on

two   jurors   failing   to   disclose   their   pre-trial   knowledge    of

defendant and details of the case; 3) providing erroneous jury


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instructions,    and   4)     failing   to   provide   proper   curative

instructions.

     Defendant argues before us on appeal that he was entitled to

an evidentiary hearing regarding these same issues.       Judge Sandson

reviewed the issues raised in detail and discussed why no issue

raised a prima facie showing meriting an evidentiary hearing.         "If

the court perceives that holding an evidentiary hearing will not

aid the court's analysis of whether the defendant is entitled to

post-conviction relief . . . or that the defendant's allegations

are too vague, conclusory, or speculative to warrant an evidentiary

hearing . . . then an evidentiary hearing need not be granted."

State v. Marshall, 
148 N.J. 89, 158 (1997).

     The PCR judge, who was furnished with the entire trial

transcript, reviewed in detail the most significant issues raised

and we affirm on the basis of his thorough decision.        With regard

to the issues raised by defendant not addressed with specificity

by the PCR judge, none had sufficient merit to require discussion

in a written opinion.       R. 2:11-3(e)(2).

     Affirmed.




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